Continuing with the commentary on the Jawahir, let’s start with its passage to open the discussion on the first of the Scriptural Crimes, that of fornication:
On Fornication (Zina)
It is shortened, and written with a Y [زنى -ed.], and lengthened and written with an A [زناء -ed.]. There is a consensus on its religious prohibition in every era, in order to preserve lineage. Thus it is among the five basics which must be set forth in any shari’a, and it is among the great sins known without doubt [qat’an] from the Qur’an and the Sunna, and consensus, if it is not a necessity of religion. And what is requires review of the elements, the punishment, and the related matters.
[Reminder that the Jawahir is a commentary, and the bolded portion here represents the original text on which it is commenting, Muhaqqiq al-Hilli’s Shara’i al-Islam]
Thus begins the Jawahir’s analysis of the all important subject of fornication, or zina. The first sentence is this very typical determination on the part of commentators, in particular in books of fiqh, to turn first to the lexical treatment of the term they will be commenting upon. The move is more noticeable here than it is in other places because there seems to be almost no purpose to it. Normally it is tempting to ascribe to the insistence on lexical context some sort of affinity for hypertextualism–the idea that the semantic meaning of the word is objective, absolute, and that it controls in some determinative fashion the contours and applications of the matter in question. But here this is hardly the case. It no more matters how to spell or pronounce “zina” than it does how to pronounce “harassment.” Query whether or not the seeming obsession of the jurists with the lexicon relates in some way or other to the notion of word as totem rather than modern fascinations with textualism. After all, zina is not just some modern Arabic term somebody came up with, but one with origins in the sacred sources. You have to know how to say it, correctly, if you are going to claim to know something about it, because its proper spelling and pronunciation is an intrinsic part of the subject of inquiry. A subject to turn to again in future analysis.
A second interesting matter which one notices straight away is the manner in which Sahib al-Jawahir immediately universalizes the idea of the fornication prohibition. It is not merely prohibited in a particular time, but in every era, including, presumably, those that predate Islam. It is not merely Islamic law that prohibits fornication, but every shari’a, which importantly means here every religio-legal system. (To underscore the point, the association of the word shari’a with Islam and Islamic law is not nearly as obvious in Arabic as it is in English. Shari’a in different forms means law, legitimacy, religious law, and even legislation, but it only means “Islamic law” in Arabic when it is deployed in shorthand. The proper word in full in Arabic would be “Islamic shari’a”. Hence, article 2 of the Egyptian Constitution indicates that the “principles of the Islamic shari’a are the main source of legislation.” [emphasis mine] This explains the confusion of a former Egyptian student of mine when he was told of Oklahoma’s shari’a ban. “You mean they want to ban their own shari’a too?” he asked.)
Third, note the striking justification. The problem with zina is not that it causes one to think of worldly matters rather than focus on spiritual ones. It is not that it results in an unhealthy obsession with sex. None of that is a particular problem as we shall see. That’s just a description of how human beings, and mostly men, are. Sex obsessed creatures who needs lots of sex if they are going to survive. The problem, instead, is that lineage is disrupted. Nobody knows who their father is anymore. That this is a catastrophe is so obvious to Sahib al-Jawahir that he does not even bother to explain it, he just presents it as self evident, a curious and notable lack of investigation from the ever intellectually curious commentator.
Finally, of course, there is the deep, deep nature of the sin. One of the five essential sins. Absolutely incumbent on a religion to ban it. A major violation. No doubts or ambiguities about it. The word qata’ is notable, and used in Islamic law only to denote those things about which there can be no doubt, and indeed the denial of which would be something akin to apostasy. Shi’i rules are normally infused with a deep sense of doubt, which is deeply woven into modern Shi’i jurisprudence. The Prophet Muhammad died, and left the People of his House as his successors, and when the last of those successors, the Twelfth Imam known as the Mahdi, went into hiding, then doubt permeated the jurisprudence. But some things are clear, absolutely so, and obvious from the Book and the Sunna of the Prophet. Zina is one of them. (To be clear and complete, there will be doubts and ambiguities about when it applies, but this is different. It is one thing to say that whether or not one has fornicated is subject to doubt–if, for example, there is a question respecting the validity of their marriage. Quite another to suggest that fornication as crime and sin is subject to doubt. The latter the fiqh will not countenance, and the former is obvious to any commentator who can think themselves out of a paper bag.)
So, one paragraph into our first Scriptural Crime, that of fornication, we know this. It is a tremendous sin, which any respectable legal system ever created must ban by necessity, and which Islam does, in an absolute and unambiguous fashion. We will turn in the next post to the elements of that sin, as the commentator suggests, followed by the punishment, and then the ancillary matters.
And the journey continues.